Hurd v. The Atchison

• Decision Date: 10 February 1906
• Docket Number: 14,472
• Citation: 73 Kan. 83,84 P. 553
• Court: Kansas Supreme Court
• Parties: M. J. HURD v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al

84 P. 553

73 Kan. 83

M. J. HURD v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al

No. 14,472

Supreme Court of Kansas

February 10, 1906

Decided January, 1906.

Error from Harper district court; PRESTON B. GILLETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JURISDICTION--District Judge--Dissolution of a Restraining Order. A district judge at chambers has power to dissolve a restraining order granted by a probate judge under the provisions of section 239 of the civil code. (Gen. Stat. 1901, § 4686.)

2. RAILROADS--Appropriation of Land--Temporary Injunction. A showing by the plaintiff that a railway company, which was taking steps toward the building of a switch for a public use in a city, had made a survey across plaintiff's ground, and that if the switch were built it would greatly injure plaintiff, did not require the allowance of a temporary injunction by the district judge, since it did not appear that the railway company intended to take possession of or to appropriate the ground illegally, or otherwise than by purchase or condemnation.

3. INJUNCTION--Apprehension or Possibility of Injury Will Not Warrant It. Mere apprehension or a possibility of wrong and injury by a defendant is ordinarily not enough to warrant the granting of an injunction, but there should be at least a probability of wrongful action and irreparable injury before a court is required to enjoin the action.

E. C. Wilcox, for plaintiff in error.

William R. Smith, O. J. Wood, Fred Washbon, and T. A. Noftzger, for defendants in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.

M. J. Hurd, who owns real property in the city of Anthony, brought this suit against the Atchison, Topeka & Santa Fe Railway Company, the Kansas Southwestern Railway Company, the Anthony Wholesale Grocery Company and the city of Anthony to enjoin the construction of a switch across certain lots belonging to plaintiff, over a street and up an alley to the place of business of the Anthony Wholesale Grocery Company. It was alleged that the railway companies were cooperating in building the proposed switch, and that it was being done for the accommodation of the Anthony Wholesale Grocery Company, and for a purely private purpose. There were also allegations that a track built as proposed would greatly injure the plaintiff, and that the injury would be one for which there was no good measure of damages. A temporary restraining order was allowed by the probate judge, and upon notice the matter of dissolving the order was brought before the judge of the district court, at chambers. The question was submitted upon some agreed facts, and also upon testimony, with the result that the district judge dissolved the temporary restraining order. Application was then made to the district judge to grant a temporary injunction, and the testimony and facts used on the first hearing were submitted on this application, but the judge found them to be insufficient and denied the temporary injunction.

It is first insisted that there was no power in the district judge at chambers to dissolve the restraining order granted by the probate judge. The argument is that prior to the amendment of 1901 section 239 of the civil code (Gen. Stat. 1889, § 4334) authorized probate judges to grant temporary injunctions, but that under the amendment only restraining orders may be issued by them, and that while there is express authority given to district judges to dissolve temporary injunctions the power to dissolve temporary restraining orders is not given. (Gen. Stat. 1901, § 4686.) In the amended section it is provided that the restraining order granted by the probate judge shall be of the same effect as a like order made by the district judge, and district judges have always exercised the power of setting aside their own restraining orders, as well as those granted by probate judges. Besides, the act concerning district courts provides that the judges at chambers and in vacation shall have power not only to vacate and modify injunctions but also to vacate all necessary interlocutory orders. (Gen. Stat. 1901, § 1924.) A temporary injunction and a temporary restraining order are each designed to afford temporary injunctive relief of the same general character, and if the power to vacate a temporary injunction is not of itself sufficient to vacate a temporary restraining order the language of the statute giving district judges the power to...